The Law Giver
A.
Introduction
Judge is important issue in Ushul Fiqh, because connected with “Who
make a law in islam substantively?”, “Who determine law in islam?”, “Can human
intelligence determine good thing or bad thing before revelation given to
prophet Muhammad SAW?”. Human being given by Allah SWT potential of life
(thaqotul hawiyah) such as defends their self, make generation and etc. Beside
that Allah give potential of body (hajatul Adlawiyah) such as hungry, sleepy,
thirsty and etc. Human do their life with those potential, but if they didn’t
know what is good thing and what is bad thing they can’t life with prosperity,
peaceful and happy. So, human must know about law and the important thing is
who make the law itself.
B.
Definition
of judge (
الحاكم )
Etymologically, judge have two definition:
v
واضع الأحكام ومثبتها ومنشئها ومصدرها
“Maker, settler, establisher, source of law”
From the first definition, judge is Allah SWT. Because Allah SWT
who make law and the only one source of law. No law in Islam except from Allah
SWT either it is taklifi law (wajib, sunah, mubah, makruh and haram) or wadh’I
law ( sebab, syarat, sah and batal, ‘azimah and rukhsoh, and mani’). All of law
based on Allah SWT, from the revelation given to prophet Muhammad SAW or from
the result of mujtahidin agreement such as ijma’ and qiyas. Ulama of Ushul Fiqh‘give
principle:
لا
حكم إلاّ لله
“No law except from Allah SWT”
‘Ulama’s reason to support that principle is:
SEE : AL-MAIDAH, 49
SEE : AL-MAIDAH, 49
And this (He commands): Judge thou between them by what Allah hath
revealed, and follow not their vain desires, but beware of them lest they
beguile thee from any of that (teaching) which Allah hath sent down to thee.
And if they turn away, be assured that for some of their crime it is Allah.s
purpose to punish them. And truly most men are rebellious. (Al-Maidah : 49, translation
by : Abdullah Yusuf Ali).
SEE : AN-NISA, 59
SEE : AN-NISA, 59
·
O ye
who believe! Obey Allah, and obey the Messenger, and those charged with
authority among you. If ye differ in anything among yourselves, refer it to
Allah and His Messenger, if ye do believe in Allah and the Last Day: That is
best, and most suitable for final determination. (An-Nisa : 59, translation by
: Abdullah Yusuf Ali).
This
verse tells that if we want to search solution of problem in Islamic law, we
must come back to Al-Qur’an and Sunnah.
v
الذي يدرك الأحكام ويظهرها ويعرفها ويكشف عنها
Who found, explain, introduce and reveal law.
From the second definition, ‘Ulama of Ushul Fiqh divide into two
parts:
1.
After
Rasulullah SAW deliver revelation and teach about Islam.
‘Ulama
compromised that the judge is law given by Allah SWT to Rasulullah SAW. What
Allah’s said that is halal, the law is halal and what Allah’s said that is
haram, the law is haram. Halal called by hasan (good), there are advantages for
human being. Haram called by qabih (bad), there are disadvantages for human
being.
2.
Before
Rasulullah SAW deliver revelation and teach about Islam.
There are
different argument from ahlussunah wal jama’ah and mu’tazilah. ’Ulama of ahlussunah
wal jama’ah said that periode before prophet Muhammad SAW there aren’t law
because law can’t be obtained except by Rasulullah, while their mind can’t
achieve it. ‘Ulama of mu’tazilah said that judge is Allah SWT, but human being
can find Allah’s law and explain it before Rasulullah SAW deliver revelation
and teach about Islam. This problem called by tahsin wa attaqbih, the meaning
is clarify those thing is good or bad.
C.
Tahsin
and Taqbih
There are some definition from Ushul Fiqh ‘Ulama about hasan and
qabih.
First, al-husnu (الحسن) is all deeds appropriate with behavior of human. Such as
give some money to beggar, help our friend make an assignment and etc. Qabih is
thing that human being dislike with it. Such as stole money, rob and etc.
Second, al-husnu (الحسن) is
perfect characteristic, like knowledge and glory. Qabih is negative
characteristic, like stupid and greedy. All of ‘Ulama agree that two definition
of hasan and qabih can be achieved by intelligence.
Third, al-husnu (الحسن) is thing that can be did by human, they know the
goodness and capable to do it. Whereas qabih is thing forbidden for human to do
it and can’t be achieved by intelligence.
Fourth, if someone do good thing, the others will proud with him
and get reward in the hereafter, like obedient to Allah’s command. If someone
do bad thing, the others will insult him and get torture in the hereafter.
Asy’ariyah ‘Ulama think that “hasan and qabih” in third and fourth
definition have syar’I characteristic and must be determined by syara’. ‘Ulama
of Mu’tazilah think that all of human deeds can be achieved and determined by
intelligence. Intelligence can determine what goodness is and what badness is.
D.
Connection
between intelligence and revelation
There are three opinion from Ushul Fiqh ‘Ulama:
1)
Ahlussunah
wal Jama’ah said that human’s intelligence can’t determine law before Rasul
deliver revelation. Human’s intelligence can’t know what goodness is and what badness
is. Their reason is Allah’s saying in holly Al-Qur’an :
SEE : AL-ISRA, 15
SEE : AL-ISRA, 15
·
Who receiveth guidance, receiveth it for his own benefit: who goeth
astray doth so to his own loss: No bearer of burdens can bear the burden of
another: nor would We visit with Our Wrath until We had sent an apostle (to
give warning). (Al-Isra’ : 15, translation by : Abdullah Yusuf Ali).
This verse indicate that responsibility and calculation to human
being will be done after Allah send messenger to deliver revelation. Logically,
Ahlussunah wal Jama’ah thing that no obligation for Allah to determine good
thing which is good in human mind, and no obligation for Allah to determine bad
thing which is bad in human mind. Allah have absolute desire, without
dependence the others. He can do anything although it is no advantage, but we
know that what Allah command is true and content advantage, and what Allah
forbid content disadvantage.
2)
Mu’tazilah
said that human’s intelligence can determine law before Rasul deliver revelation.
Human’s intelligence can determine goodness and badness without messenger.
Therefore, goodness and badness can be achieved and applied by intelligence.
They translate this verse “nor would We visit with Our Wrath until We had sent
an intelligence”. Mu’tazilah principle in that problem is hasan and
qabih product by intelligence. Consequence from this opinion is human who
haven’t come to them syari’at and messenger, will be given obligation to do
what on their mind is good. Mu’tazilah also thing what Allah’s saying can be
achieved by intelligence.
3)
Maturidiyah
try to make solution about those differences. They think that there are words
or deeds basically good or bad. Allah command to human being not to do badness
and command to do goodness. Essence of goodness and badness not in words and
deeds itself but syara’ have authority to determine it. So, their opinion same
with Mu’tazilah opinion.
Implication from these differences is law problem, where
intelligence position in ijtihad, “can intelligence become law sources?”
Ahlussunah wal Jama’ah and Maturidiyah think that it can’t become source of
Islamic law but intelligence have important function to solve many problems in
Islam. Muhammad Abu Zahrah said that all of fiqh products are result from human
intelligence but this intelligence must be conduct with Al-Qur’an and sunnah.
While Mu’tazilah and Syiah Ja’fariyah said that intelligence is third Islamic
law resources.
E.
Islamic
problem related to intelligence and revelation
1)
Wearing
headscarf
Quraisy Shihab
said that wearing headscarf is not obligation for muslimah because the
important thing in muslimah dress is respectable, therefore no one disturb her.
But this argument contradictive with Dr. Ahmad Zain An-Najah, he said that
Quraisy shihab argument “respectable dress” have not clear constraint. If
people in a country think that wearing bikini is respectable dress, but in
other country it is not respectable dress. So, definitions of respectable in
some country, institution or company have different explanation. Islamic law to
muslimah is to wearing headscarf, the reason is to close genitals and the
advantage is no one disturbs her. So, every muslimah who wearing headscarf
appropriate with Islamic constraint, she have done what Allah’s saying to close
genital.
2)
Smoking
Basically, there is no clear source
mention that smoking is haram. Imam syafi’I theorem mentions that everything is
mubah basically (الأصل فى الأشياء الاباحة),
except there is argumentation that thing is haram. Smoking can be categorized
to isyraf in Islam that is including in haram
basically. Imam ibn Hazm give definitions about isyraf : wasting money
for not useful activities, over shopping and include smoking. Allah say in
holly Al-Qur’an:
AL-AN'AM, 141
AL-AN'AM, 141
This verse explain that Allah don’t love human who excessive. There
are some ‘Ulama said that smoking is haram : Syekhul Islam Ahmad as-Sanhuri
al-Bahuti al-Hambali, and from mazhab Maliki is Ibrahim al-Laqqani (both of
them from Mesir) and Abdul Ghats al-Qasysy al-Maliki (from Maroko). Abdurahman
Nafis, one of manager MUI East Java said that smoking depend on two elements, intoxicated
(muskir) and dangerous (mudhir). Same with food that contain chemicals and it
is danger to human body. If it’s content over chemicals and dangers to human
body, MUI agree that is haram. Because there is not explicit and specific
argumentation, smoking include in makruh.
3)
Having
boyfriend or girlfriend
There are many opinion about having
boyfriend or girlfriend. Some of them said forbidden and the others said that
it be permitted but in Islamic way. First argument forbidden having girlfriends
or boyfriend is in Qur’anic verse:
SEE : AL-ISRA, 32
SEE : AL-ISRA, 32
Ÿ
Islam forbid to zina , forbid to close it moreover to do it.
Now, in modern era have girlfriend or boyfriend different from some years ago.
Previous time, there aren’t time too long to have boyfriend or girlfriend
because after it they get married. But in this time not like that, we can see
many student of senor high school have sex before married and some institution
try to survey girl student to know is she still virgin or not. The fact is most
of them is not virgin. This is argument that forbid to having boyfriend or
girlfriend. People who said that it be permitted but in Islamic way have
argumentations, if people want to married, he have to know women to be married.
If they don’t know each other, maybe their family will be broken in the future.
Conclusion
Judge
in Islamic law is Allah SWT. Because Allah SWT who make law and the only one
source of law. Although there are many differences about judge before Rasulullah
SAW deliver revelation and teach about Islam that said intelligence can become
source of Islamic law but intelligence can’t against Allah’s dominance.
Connection between intelligence and revelation make many ‘ulama have different
opinion about it and it becomes references from ‘Ulama in this era to solve
many problems that connect with intelligence and revelation.
Bibliography
Haroen,
Nasrun. 1996. Ushul Fiqh . Jakarta: Logos Publishing House.
Al
Munawar, Said Agil Husin. 2004. Membangun Metodologi Ushul Fiqh. Jakarta:
Ciputat Press.
Khalaf,
Abdul Wahab. 1996. Kaidah-Kaidah Hukum Islam. Jakarta: RajaGrafindo
Persada.
